The United States Supreme Court has granted certiorari to review Moncrieffe v. Holder, US 5th Cir. 11/08/2011 No. 10-60826, a case involving whether a state conviction for marijuana possession that is equivalent to a felony under federal law is an "aggravated felony" under the immigration law, even if the conviction could fall within the federal misdemeanor exception for minor drug offenses. A foreign national convicted of an aggravated felony is grounds for removal from the United States.
This case involves a foreign national who pled guilty to possession of marijuana with intent to distribute under Georgia law § 16-13-30(j) in 2008. The Department of Homeland Security (DHS) charged him with being removable from the U.S. due to the conviction on the basis that the conviction is a felony under the Controlled Substances Act (CSA), 21 U.S.C. § 841(b)(4), and an aggravated felony under Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(B). The Immigration Judge (IJ) ruled that the state conviction was comparable to a federal felony and that he was removable as an aggravated felon.
Moncrieffe appealed the case to the Board of Immigration Appeals (BIA) arguing that the crime should not be considered an aggravated felony because the Georgia law punishes acts that are equivalent to misdemeanors under the CSA. Moncrieffe argued that the Georgia law involving distribution of "a small amount of marijuana for no remuneration" is only a misdemeanor under federal law because the charging document and the Georgia conviction did not specify how much marijuana he possessed. Thus, Moncrieffe argued that the prosecution did not prove there was remuneration of more than a small amount of marijuana, so the conviction should be considered a federal misdemeanor. The BIA did not agree, and it upheld the IJ's ruling.
Moncrieffe appealed the conviction to the U.S. Fifth Circuit Court of Appeals. The court acknowledged that the Circuits are split on this issue. The court noted that the Sixth Circuit has ruled that the amount of marijuana is not an element prosecutors must establish for conviction under the federal felony provision. Therefore, according to the Sixth Circuit, the felony provision of the federal statute is the default provision, and the misdemeanor provision is merely a mitigating sentencing provision.
The court also noted that the Second and Third Circuits take a different view, focusing on the doctrine of "least culpable offense," meaning that only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant
The court recognized published Fifth Circuit case law as precedent, and the court upheld Moncrieffe's conviction. This split between the Circuits may be resolved once the Supreme Court hears the case.